Post Process

Everything to do with E-discovery & ESI

Case Blurb: YouTube; Denying Motion Compelling the Production of Source Code to Opponents

Posted by rjbiii on August 12, 2008

Plaintiffs move jointly pursuant to Fed. R. Civ. P. 37 to compel [Defendants] to produce certain electronically stored information and documents, including a critical trade secret: the computer source code which controls both the YouTube.com search function and Google’s internet search tool “Google.com”. [Defendants] cross-move pursuant to Fed. R. Civ. P. 26(c) for a protective order barring disclosure of that search code, which they contend is responsible for Google’s growth “from its founding in 1998 to a multi-national presence with more than 16,000 employees and a market valuation of roughly $ 150 billion”, and cannot be disclosed without risking the loss of the business. Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614, 7-8 (S.D.N.Y. July 1, 2008 ) (internal citations removed).

YouTube and Google maintain that “no source code in existence today can distinguish between infringing and non-infringing video clips — certainly not without the active participation of rights holders”, and Google engineer Amitabh Singhal declares under penalty of perjury that:

The search function employed on the YouTube website was not, in any manner, designed or modified to facilitate the location of allegedly infringing materials. The purpose of the YouTube search engine is to allow users to find videos they are looking for by entering text-based search terms. In some instances, the search service suggests search terms when there appears to be a misspelling entered by the user and attempts to distinguish between search terms with multiple meanings. Those functions are automated algorithms that run across Google’s services and were not designed to make allegedly infringing video clips more prominent in search results than non-infringing video clips. Indeed, Google has never sought to increase the rank or visibility of allegedly infringing material over non-infringing material when developing its search services.

Id. at *9-10 (internal citations removed).

Plaintiffs argue that the best way to determine whether those denials are true is to compel production and examination of the search code. Nevertheless, YouTube and Google should not be made to place this vital asset in hazard merely to allay speculation. A plausible showing that YouTube and Google’s denials are false, and that the search function can and has been used to discriminate in favor of infringing content, should be required before disclosure of so valuable and vulnerable an asset is compelled.

Nor do plaintiffs offer evidence supporting their conjecture that the YouTube.com search function might be adaptable into a program which filters out infringing videos. Plaintiffs wish to “demonstrate what Defendants have not done but could have” to prevent infringements, (plaintiffs’ italics), but there may be other ways to show that filtering technology is feasible FN2 and reasonably could have been put in place. Id. at *10 (internal citations removed).

FN2: In the Viacom action:

Viacom is currently using fingerprinting technology provided by a company called Auditude in order to identify potentially infringing clips of Viacom’s copyrighted works on the YouTube website. The fingerprinting technology automatically creates digital “fingerprints” of the audio track of videos currently available on the YouTube website and compares those fingerprints against a reference library of digital fingerprints of Viacom’s copyrighted works. As this comparison is made, the fingerprinting technology reports fingerprint matches, which indicate that the YouTube clip potentially infringes one of Viacom’s copyrighted works.

Finally, the protections set forth in the stipulated confidentiality order are careful and extensive, but nevertheless not as safe as nondisclosure. There is no occasion to rely on them, without a preliminary proper showing justifying production of the search code.

Therefore, the cross-motion for a protective order is granted and the motion to compel production of the search code is denied. Id. at *11.

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